PRITINKER DIWAKER,J. - (1.)THIS appeal is directed against the judgment dated 8.7.92 passed by Special Judge, Raigarh, in Special Case No. 20/1991 convicting the accused/appellant for the offences punishable under Section 354 IPC and Section 3(1)(XI) of the Scheduled Caste and Scheduled Tribe (Prevention of atrocities) Act and sentencing him to undergo rigorous imprisonment for two years separately on each count.
(2.)CASE of the prosecution in brief is that on 8.7.1991 a written report Ex. P-1 was lodged by the prosecutrix (PW-1) aged about 24 years alleging that on 7.7.1991 at about 7 p.m. accused/appellant along with co-accused Ahibaran came to her house and asked her to cook food. Thereafter, accused/appellant gave Rs. 20 to her husband to get chicken and sent him to the market for that purpose. When she was cooking food, accused/appellant again asked her husband to get snacks from the market. Thereafter, when she had gone to the roof for getting the fire wood, he followed her, caught hold of her hand, took out his full pant and when she cried, her husband and maternal aunt Sufal Bai (PW-2) came there. According to the prosecutrix, after seeing her husband, accused/appellant ran away jumping over the roof, leaving his full pant there itself.
In order to establish the guilt of the accused/appellant the prosecution has examined 09 witnesses. Statements of the accused persons were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charge levelled against them and pleaded their innocence and false implication in the case.

After hearing the parties the trial Court has convicted and sentenced the accused/appellant for the offences as mentioned above. However, co-accused Ahibaran has been acquitted of the charges levelled against them.

Heard counsel for the parties and perused the material available on record including the judgment under challenge.

Counsel for the appellant submits that there is an unexplained delay on the part of the respondent in lodging the FIR as the incident had taken place on 7.7.1991 at about 6 p.m. whereas the report was lodged on 8.7.1991 at about 1.35 p.m. He submits that the statement of the prosecutrix being full of exaggeration cannot be made the basis of conviction of the appellant as mentioned above. He submits that when on the same set of evidence co-accused Ahibaran has been acquitted of the charges levelled against him, appellant should also have been awarded acquittal. He further submits that no document whatsoever has been produced by the prosecution to show that the prosecutrix belongs to the scheduled tribe community and therefore in these circumstances the appellant cannot be convicted under Section 3(1)(XI) of the Scheduled Caste and Scheduled Tribe (Prevention of atrocities) Act.

(3.)ON the other hand counsel for the respondent/State supports the judgment impugned and submits that the conviction of the accused/appellant is in accordance with the material available on record and therefore no interference is warranted with the same.
Prosecutrix (PW-1) has stated in her evidence that on the date of incident the accused/appellant along with co-accused Ahibaran had come to her house and asked her to cook food. Thereafter, accused/appellant gave Rs. 20 to her husband for getting chicken from the market. Thereafter, he again sent him for getting the snacks. When she went to the roof to get the fire wood, appellant also followed her, caught hold of her hands, removed his full pant and made an attempt to outrage her modesty. In an attempt to get rid of accused/appellant, her bangles were broken, her petticoat was torn and she had received injuries also. When she raised an alarm, her maternal aunt Sufal Bai (PW-2) and her husband Premlal (PW-6) reached there and on seeing her husband he fled away by jumping over the roof leaving his full pant there itself. She has also stated that she belongs scheduled tribe community. In the cross examination this witness has denied the suggestion that there was some previous dispute between her and the appellant. Statement of this witness has been duly supported by Sufal Bai (PW-2) who has stated that after hearing the cries raised by the prosecutrix she had rushed to the spot and seen the accused/appellant holding hand of the prosecutrix and then he ran away by jumping over the roof. Husband of the prosecutrix namely Premlal (PW-6) has also supported the version given by the prosecutrix. Dr. Sarvendranath Upadhyaya (PW-3) who had medically examined the prosecutrix has stated that he had found injuries on her left elbow. Sukhlal (Pw-4) the seizure witness of petticoat of the prosecutrix, one cycle and full pant of the appellant vide (Ex. P-2, P-5 and P-7 respectively) has also supported the case of prosecution. Investigating officer Parshuram Yadav (PW-9) has also supported the case of the prosecution.

It is an admitted position that the prosecution has not produced any document such as caste certificate which is the basic requirement under the law, to show that the prosecutrix is a member of scheduled tribe community and therefore conviction of the appellant under Section 3(1)(XI) of the Scheduled Caste and Scheduled Tribe (Prevention of atrocities) Act being contrary to the provisions of law cannot be sustained and it is accordingly set aside. However, as regards conviction under Section 354 IPC, there is sufficient material available on record to show that he went to her house, sent her husband to the market for bringing certain food items, followed the prosecutrix up to the roof, caught hold of her hands and tried to outrage her modesty, the trial Court has not committed any illegality or infirmity in convicting him under Section 354 IPC.